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constitutional, post-conviction right of access to previously produced forensic evidence for the purpose of testing." Wilkinson responded by expressing hope that inmates like Harvey would have access to DNA testing but that it was a matter for the legislature to decide. Significantly, his majority opinion in the original appeal stated, "our decision reflects the core democratic ideal that if this entitlement is to be conferred, it should be accomplished by legislative action rather than by a federal court as a matter of constitutional right."
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427:(1963) because the material could prove to be exculpatory evidence, asserting that "denying the plaintiff access to potentially powerful exculpatory evidence would result in . . . a miscarriage of justice." Significantly, Bryan also concluded that Harvey's claim was not in effect a petition for a writ of habeas corpus because Harvey was not seeking immediate release from prison or challenging his conviction. The judge ordered Horan to send all the evidence to the
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was denied access to potentially exculpatory evidence. They said that the test could be decisive if it yielded certain result — for example, if the laboratory identified DNA from two men and neither of them was Harvey. They also noted that although the prosecutor claimed that his office would allow DNA testing in appropriate cases, Fairfax had never found an appropriate case.
510:, that the evidence could indeed inculpate Harvey and thus that § 1983 was a proper vehicle for bringing the action. However, King determined that since the material had been available to him at trial and since he had not been denied access to the legal system or evidence known to be exculpatory, Harvey did not have a legal claim to discover evidence under
384:("STR") DNA testing, which was unavailable at the time of Harvey's trial. The Division of Forensic Science recommended that the Innocence Project bring its request to the Fairfax County Commonwealth's Attorney's office. The Innocence Project made this request in February 1998 and July 1999. In October 1999, Commonwealth attorney
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stating that Harvey could not be eliminated as a possible contributor to the sperm fractions found on the victim. On
September 24, 2002, Harvey filed a petition for a writ of habeas corpus in the Virginia Supreme Court, challenging the validity of the certificate of analysis and related test results.
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by refusing the test. In a 13-page opinion, Bryan stated, "due process is not a technical conception with a fixed concept unrelated to time, place and circumstances. It is flexible and calls for such procedural protections as the particular situation demands." He found that Harvey had a due process
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Circuit Judge King concurred in part and in judgment with the majority decision. While he agreed that the lower court's decision was incorrect, he also contended that Harvey's claim could properly be brought under § 1983. The judge stated that the act of providing Harvey access to evidence did not
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According to the majority opinion, the only purpose of Harvey's claim was to challenge his conviction based on evidence that was available to him at the time of his trial. As such, the court concluded that Harvey's rights had not been violated by Horan. The court also stated that Harvey could only
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While we agree with Harvey that the question of guilt or innocence lies at the heart of the criminal justice system, we also believe that the proper process for raising violations of constitutional rights in criminal proceedings cannot be abandoned. Because the substance of a claim cannot be severed
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After the
January 2002 decision was handed down, Harvey applied to Virginia's Fairfax Circuit Court for DNA testing based on a 2001 law allowing felons increased access to potentially exculpatory biological evidence that had not previously been subjected to the current DNA testing method. On March
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The opinion went on to state that Harvey's action under § 1983 "sought to invalidate a final state conviction whose lawfulness has in no way been impugned". Harvey claimed that he was challenging neither the fact nor the duration of his confinement, pointing out that he merely seeks evidence which
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under 42 U.S.C. § 1983. Harvey's attorneys cited this statute, which is most often used in cases of police brutality, because Harvey's previous lawyers had missed a filing deadline in the more common criminal appeals process. They argued that Harvey's right to due process was infringed because he
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The possibility of post-conviction developments, whether in law or science, is simply too great to justify judicially sanctioned constitutional attacks upon final criminal judgments. …Establishing a constitutional due process right under § 1983 to retest evidence with each forward step in forensic
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and
Wilkinson, wrote anyway. Luttig wrote that the "right of access to evidence for tests which ... could prove beyond any doubt that the individual in fact did not commit the crime, is constitutionally required ... as a matter of basic fairness." Luttig also concluded that there is "a limited,
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actions are "not appropriate vehicles for challenging the validity of outstanding criminal judgments." As such, the majority opinion in the appeal overturned the lower court's ruling because it found that Harvey had substantively failed to make a claim under § 1983. Judge
Wilkinson wrote that
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could also prove his guilt. The court found this argument to be an evasion, saying, "He is trying to use a § 1983 action as a discovery device to overturn his state conviction". The majority opinion asserted that the finality of convictions could not be challenged by advances in technology:
447:. He contended that § 1983 was not an appropriate vehicle for Harvey's action. He stated that the procedural flaws in the claim required that it be dismissed because it was really a successive petition for a writ of habeas corpus and an attempt to get around strict rules and deadlines.
470:(1994), a convicted criminal defendant cannot bring a § 1983 action that would "necessarily imply the invalidity of his conviction or sentence" unless the defendant can prove that his "conviction or sentence has already been invalidated." In this decision, the
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Harvey had attempted to circumvent habeas corpus requirements, which required exhaustion of remedies at the state level before moving to the federal level. By bringing his claim directly to federal court under § 1983, Harvey had violated procedure:
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case in their testimony, saying that it was significant for being the first federal court decision in the country to recognize a constitutional right of access to post-conviction DNA testing. The
Innocence Protection Act eventually passed in the
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denied the request for access to the evidence, asserting that even if Harvey were excluded as a contributor of genetic material, it would not prove his innocence due to the testimony indicating that he had not left any biological evidence behind.
616:. The court decided that prisoners did not have a right to the testing. The decision only affects those few states that do not have laws similar to the federal Innocence Protection Act that explicitly give prisoners a right to DNA evidence.
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clause. On July 25, 1995, the district court dismissed Harvey's petition, finding that he had not exhausted state remedies and would have to refile his claim for DNA testing as a petition for a writ of habeas corpus under
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562:(D-VT) introduced the act after devoting nearly a year to evaluating flaws in the administration of the death penalty nationwide. A few months later, the bill was introduced in the House by
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514:. He stated that Harvey's claim was invalid not because he violated procedure, but because he could not prove that a state actor deprived him of a federally protected right.
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263:, which ensures that convicted offenders can try to prove their innocence by requesting DNA testing on evidence in government's possession that was used in their case.
310:. Harvey was also implicated by testimony from his co-defendant, the victim, and a third prosecution witness. However, this testimony indicated that Harvey had not
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make his claim in habeas corpus, but that even if he had the court would be forced to dismiss it, for he had already filed such a petition in federal court.
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On
January 23, 2002, the court concluded that Harvey's rights had not been violated and that the lower court had erred in its decision. Fourth Circuit
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for testing. Although Bryant's decision was not binding in other courts, it was significant because Bryant was the first judge to issue such an order.
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violations. He claimed that the state's failure to re-test biological evidence from the case was a violation of his rights under the
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on Harvey's behalf, requesting the biological evidence form the case. The
Innocence Project wanted to re-test the evidence using
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by an overwhelming majority (393-14) on
November 5, 2003. On October 9, 2004, the legislation, which was sponsored by Senator
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The court dismissed the petition on June 10, 2004, saying that it did not have jurisdiction to consider it.
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alone necessarily imply the invalidity of Harvey's conviction. King agrees with Harvey's attorney,
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to conduct the testing. On May 15, 2002, after the testing was completed, the division filed a
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reconsideration (as opposed to the original three-judge panel). By this time, the issue was
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wrote the opinion, in which Judge
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from the proper manner of presenting it, we find Harvey's § 1983 action to be deficient.
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Back in March 2002, the federal appeal had come before the full Fourth
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The majority opinion stated that the claim was, in effect, a petition for a writ of
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statute that allows citizens to sue state and local officials in federal courts for
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testified several times over the next few years as witnesses before hearings of
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originally found that felons were entitled access to DNA testing on potentially
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James Harvey v. Robert F. Horan, Jr., Commonwealth's Attorney, County of Fairfax
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science would leave perfectly valid judgments in a perpetually unsettled state.
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Harvey did not appeal his conviction but did file a state petition for a
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ruled that Horan had violated Harvey's right to due process under the
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Conservative US Circuit Court Judges Back Post-Conviction DNA Testing
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brought without leave of court. According to a previous case,
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in 1993. On February 25, 1994, Harvey filed action in federal
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United States Court of Appeals for the Fourth Circuit cases
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Wilkinson's hopes were manifested with the passage of the
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United States Court of Appeals for the Fourth Circuit
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United States Court of Appeals for the Fourth Circuit
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664:The Innocence Protection Act in the 108th Congress
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306:recovered from the victim through conventional
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644:Appeal from the United States District Court
626:U.S. Judge Says Felons Entitled to DNA Tests
685:"Justices Reject Inmate Right to DNA Tests"
421:right of access to the DNA evidence under
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635:VA Judge: Inmates have right to DNA tests
68:Learn how and when to remove this message
558:in 2004. On February 10, 2000, Senator
296:restriction fragment length polymorphism
31:This article includes a list of general
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439:On September 26, 2001, Horan's lawyer,
613:District Attorney's Office v. Osborne
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325:. His petition was rejected by the
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649:Virginia Supreme Court decision
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683:Liptak, Adam (June 18, 2009).
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52:more precise citations.
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243:' rights of access to
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253:exculpatory evidence
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410:Albert V. Bryan Jr.
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152:119 F.Supp.2d 581 (
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215:Concurrence
50:introducing
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568:Ray LaHood
553:bipartisan
435:The appeal
402:Alexandria
312:ejaculated
164:Rehearing
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343:Civil War
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